Who Do We Worry About With Surrogacy?

As my vacation winds down, I have been thinking about this article, which I’m sure many of you saw. (It was on the front page of the New York Times a couple of days ago.)

There’s been a lot of discussion about surrogacy here over the years (and I’m actually working on a more sustained law review type piece on the subject.) You all probably know that mostly I worry about the vulnerability of the surrogates. They are virtually always women who have less power, less money and less education than the intended parents.

While I haven’t written much about it, I know many people worry about the vulnerability of children conceived via surrogacy. No question that children are vulnerable. But all the studies I’ve read tend to show that children born via surrogacy don’t really fare differently than other children–which is to say that most do just fine. Nothing I’ve seen suggests that surrogacy per se is a problem in this regard.

Anyway, in general the people I’m the least concerned about are the intended parents–those who contract with the surrogates in order to become parents. And that is where this article comes in: It is clear that intended parents, too, are vulnerable, though perhaps not in the same way as the surrogates.

People contemplated surrogacy have, for the most part, really want children. Some of tried many other ways to become parents. Others–most, in fact–have invested a great deal of time, money and psychic energy in the process. They really want it to work–often they desperately want it to work. This makes them vulnerable, too.

And sadly, as the article makes clear, there are people out there ready and waiting to take advantage of them. There are unscrupulous operators who will prey on their need and desire.

I’m afraid that none of this is really remarkable. The world is full of unscrupulous operators. Think of all the people who apparently run scams after any natural disaster. Think of all the people who spend a lot of time figuring out how to take advantage of the elderly or those who are ill. What this means to me is that the fact that surrogacy comes with a risk of exploitation doesn’t mean that surrogacy needs to be banned. Instead, it needs to be regulated/controlled. And there need to be watchdogs.

As the article demonstrates, there are special problems when people travel to foreign countries to use surrogates. For all sorts of reasons they may be at an even greater disadvantage. And the countries may not have regulations/controls or effective watchdogs. (I suppose you get some of this even when people travel state to state within the US, but it seems to me substantially less of a concern.)

It may seem counterintuitive, but it might be that the solution to the problems exemplified in the article are to make surrogacy more readily available in the US, and to monitor surrogacy practices at the same time. You can see that this is what has happened in some places–like CA. (It’s not to say that there aren’t still scams–again the article makes clear that there are. But people do get caught and sent to jail.)

You’ll always have the problem of people who think they can get something cheaper by travelling overseas, and the only solution for that may be education. (In the end, it isn’t cheaper if you’re going to get ripped off.) But you won’t have the problem of people travelling in order to get something they cannot get here.

Maybe there’s nothing particularly insightful in this suggestion. It’s one that is made in many other contexts. And I suppose it is grounded in a certain pragmatism (you’re never going to eliminate surrogacy globally). It’s also premised on the notion that there is nothing morally wrong with surrogacy (a notion I know some would dispute.) But it seems to me that focusing on protecting the vulnerable–including the IPs–suggests moving in this direction.

28 responses to “Who Do We Worry About With Surrogacy?”

The gist is that a foreign couple engaged a Thai surrogate. She got pregnant with twins, one of which turned out to have Down Syndrome. She refused to have a termination so after the birth they took the healthy twin and left her with the baby with DS.

It appears the surrogate broke Thai law in undertaking the surrogacy this way, but for me the way it ties in to your comments above is that there is a real problem introducing a market concept into family building. These children are commodified by some wealthy parents, I’ve seen the same thing happen to egg donors by wealthy recipients; there is such a lot of money to be made and it’s so international now that it’s hard to see how practices could be changed or stopped. But I keep thinking about the girl who got taken to Aus, and what happens when she’s old enough to find out she has a brother, and what happened to him.

“there is a real problem introducing a market concept into family building” oh what aa brilliant sentence. youve said it in a nutshell. i would add that “donating” doesnt eliminate the market element because donation usually imdicatws marketable goods and services, even though money isnt

This is really only a variation of the question I just posted on christabel6’s comment: What is the “market concept” that is the problem? And perhaps (as I think further) another: where does the market concept get introduced? Is it merely through ART? Is it more general in societal attitudes towards human relationships–if it’s not working for you, move on? I suppose this matters because if I agreed with you about the problem I might still disagree about the solution?

I find myself thinking of some posts years ago about kids abandoned in Nebraska. https://julieshapiro.wordpress.com/2008/10/20/news-in-brief-nebraska-coda/ Nebraska inadvertently enacted a provision that allowed people to abandon kids up to 18 in an emergency room. A shocking number of people took advantage of the provision. I’m not saying the situations that the individuals faced weren’t difficult–doubtless they were. But the events bespeak and idea of parenthood as something you could just give up on.

This, I think, can be a problematic view and I see ways in which available technology causes trouble when it intersects with that view. But I am very wary of overgeneralizing. I know many people who have children conceived via ART who were and are totally committed to the project of raising a child–no matter what that child was like. This suggests to me that the mere fact that you might use ART doesn’t determine how you think about the commitment you are making to the child.

IMO banning these methods of having children isn’t going to solve the problem as long as the desire to have children is there. In fact I think banning would just make it worse as it would lead to more chaos with things being done illegally.

To me I think the solution is for more regulation and more education for all of the adults involved. And by education, I mean real education and not scare tactics to scare away intended parents and donors.

I’m inclined to agree–forcing surrogacy underground or forcing people to travel to other, less regulated, locations doesn’t seem like a solution. I don’t think it is entirely chance that the couple who abandoned the baby in Thailand was from Australia–where commercial surrogacy is banned. That’s why they went to Thailand–which at least was very loosely regulated.

I think you are right to call for serious education of those contemplating any role in surrogacy. And I think we ought to define some societal norms–that the surrogate and the IPs will have the ability to maintain contact, say, because the child may want access to the surrogate. That the surrogate retains decision-making authority during the pregnancy–even though the IPs have (possibly shared) responsibility for the child once it is born. In other words–no walking away. And I could go on here.

I realize this may make surrogacy somewhat less appealing, but I don’t think the goal is to make it as easy for the IPs as we possibly can. I think the goal is to shape it as a humane practice that maximizes the well-being of children born of surrogacy.

Regarding the less appealing part, I tend to believe that if it’s their only way to have a biological child and the cost isn’t insane that couples will go through with it. Studies I’ve read have shown that in the UK it was thought that banning anonymous donation would decrease the supply and demand for sperm donors and it hasn’t.

As long as the desire to children is there people are going to go these routes to become parents. You nailed it that this is a great example of what happens when you ban surrogacy. If surrogacy was regulated and adults were educated in Australia, this never would have happened.

Its not the government of the US’s responsibility to protect the citizens of another nation. Its there responsibility to protect their own citizens first, and if they determine that this means outlawing surrogacy, then the possibility that people may travel to another country is a very secondary consideration.
I may also add that one can never eliminate black market trade. people who are rejected for surrogacy like that commenter who wrote that the man is a previous offender against children, or who want to get a cheaper deal will still go elsewhere.

You’re surely right about it being impossible to eliminate black markets and this point does give me pause. I think some things should be illegal even though it will create a black market. But in this case I’ve argued that surrogacy shouldn’t be illegal because it will create a black market. Is this inconsistent? Is it that I don’t really think surrogacy should be illegal so the black market point is just a make weight? Or are some black markets more problematic than others? I’m not sure, but it does trouble me.

Your first point is a substantial one that I haven’t thought about much. I think the US should act to protect citizens of another nation. That’s why, for instance, it seems right to be to prosecute US citizens who travel overseas to have sex with kids. It’s not about protecting the US citizens.

Beyond that, of course, I think we disagree about whether making surrogacy illegal does protect US citizens. I don’t think it does–but I think regulating surrogacy would.

If the US considers it their duty to protect Thai surrogates than they should ban surrogacy tourism just as they ban prostitution tourism, without adjusting their at-home-policy. the at home policy has to be determined on its effects at home.

See I think you would be creating a black market in the US in addition to abroad if you banned it. Just because it’s illegal doesn’t mean it wouldn’t happen here. To me you’d be protecting citizens here just as well as abroad by regulating it rather than banning it.

I have only vaguely followed that story but it seems like it demands more attention. Surely it points to a problem. I’m just not exactly sure what the problem is. Maybe there is a problem with introducing a “market concept” into family building, what exactly do we/you mean by a “market concept?” It’s not that I necessarily disagree, but I feel like I’m not quite clear enough on what the problem is.

In her response, ki sarita notes that “donation” doesn’t eliminate the problem. I think that’s probably true, but what this suggests to me is that we need to be more particular and specific about what exactly the problem is.

Maybe the problem is that people feel like the can order up the child they want and reject any child that fails to meet the specifications? While this might manifest itself with surrogacy it’s not the only place. I’m thinking about people using pre-implantation genetic diagnosis, for instance, even with entirely their own genetic material?

I wonder if the problem has to do with the way people understand the undertaking of parenthood–you commit to a child before the child is born and you are committed forever, for better or worse. But unlike marriage, there is no divorce. And the child may be the perfect child or not–it makes no difference. And it makes no difference whether you go the ART route or not. There may be ways we talk about ART that exacerbate the problems, but I’m not convinced these are problems that are limited to ART.

This same principle could be applied to anyone undergoing any type of fertility treatment since you are buying the treatments to create the product (child). Even in cases where there is no surrogate or donor. It’s why I believe those who talk about commodification when it comes to things like surrogacy, adoption and third party reproduction are walking a slippery slope.

I can pay a professional to fix a broken foot for me, but I can not buy a foot. sure, if i had not paid the professional I might not have a foot. but that doesn’t mean i have bought her foot. you are drawing connections that don’t exist.

Your analogy doesn’t apply because your foot already existed. The baby or even embryo on the other hand doesn’t exist w/out medical intervention. As I said before you are walking a slippery slope here talking about commodification with children. You need to be consistent about it and not just apply it to certain groups that people fall into and ignore others.

You mean there is no relationship between any adult and the fetus in utero? I think I disagree. There are several different people who might have relationships we could note. The pregnant woman? The people who “commissioned” the pregnancy? If the word “relationship” isn’t right, maybe it’s about responsibility?

I have seen the story as well. It’s very sad and troubling to abandon the baby like that in a third world country with major medical problems and someone who could not afford to pay for them. They basically left him there knowing he could die. I don’t judge them for feeling unable to raise a child with DS, but I do judge them for what they did. Would having him adopted in Australia by a family able and wanting to care for him not have been a legal option? The surrogate mother seems to really love the baby so hopefully the donated money will be given to her and she can afford to raise him and have his medical problems taken care of.

There may be a relatively good outcome here in that the surrogate apparently wants to raise the child and, with the donated money, may be able to do that. But this shouldn’t obscure the question about how to assess what happened. It seems to me the intended parents behaved unconscionably. I suppose I don’t judge them for not being able to personally care for the child, but it seems to me that they had a moral obligation (and I mean this in the strongest terms) to ensure that the child was cared for by someone. They completely failed to meet this obligation. They just walked away. That, it seems to me, is just plain wrong and I do judge them for that.

One function of the legal system is to convey societal judgments about right/wrong. It seems to me clear that the law should be structured in some way to make clear that this conduct is wrongful. I also have to say that it makes me wonder about their fitness to care for the child they kept.

Yep, I absolutely agree there was no excuse for what they did. But if it would have been legally difficult to place him for adoption in their home country, then that is another law that should be fixed. They still should have found some way to do it, however. I don’t feel them keeping the child would have been the greatest solution since they would probably resent him enough for him to realize it. But there has to have been some alternative to the awful thing they did…

I have no concerns about Americans serving as surrogates. It’s very unlikely that they will be exploited and they have access to a wealth of information on the topic. If we’re not willing to accept that women in the US can opt to control their body by serving as a surrogate then perhaps we do need the government to regulate birth control and abortion because I’m skeptical that women can make proper choices about those two facets of their reproductive patterns but are too uninformed to be allowed to make their own decision regarding surrogacy.

I do, however, have serious reservations about women in other countries, particularly those where access to information is severely limited by poverty and folks don’t have ready access to a trustworthy legal system to help keep things on the up and up, serving as surrogates.

Blog Stats

458,540 hits

About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.